[1] In a case where a person who provided a continuous guarantee with the position of a director of the company continuously retired, whether a guarantee contract can be terminated (affirmative), and the method of exercising the right to termination

[2] Requirements to limit the scope of liability for continuous guarantee by a director, etc. of a company to the debt incurred while in office

[3] The case holding that the right to terminate the guarantee contract is recognized for a person who has resigned from the representative director after continuous guarantee while holding office as the representative director, but the limitation on the scope of guarantee liability is not recognized

[1] When a person who has become a joint and several surety for a debt arising from a continuous transaction with a third party in the position of director of a company inevitably leaves the position of director after leaving the position of director, the contract of guarantee can be terminated on the ground of the fact that the situation at the time of the formation of the contract of guarantee has been significantly changed. The expression of intent to terminate is not necessarily required in writing. However, the creditor is aware of the resignation of the joint and several surety, and the contract of guarantee is not terminated as a matter of course without the declaration of intention to terminate

[2] Where a director, etc. of a company jointly and severally guaranteed a debt arising from a continuous transaction with a third party, he/she shall be held jointly and severally liable for only the debt incurred during the company's transaction to the director, etc. for the purpose of jointly and severally liable for the debt arising from the company's continuous transaction because he/she is a director's position. In addition, there are special circumstances, such as accepting a new joint and several guarantee by the director, etc. working for the company at the time of the transaction whenever the other party to the transaction makes a transaction, and the joint and several guarantee cannot be interpreted as limited

[3] The case holding that the right to terminate the guarantee contract shall be recognized for the person who has resigned from the representative director after continuous guarantee while holding office as the representative director, but the limitation on the scope of guarantee liability shall not be recognized

[1] Articles 428 and 543 of the Civil Act / [2] Article 428 of the Civil Act / [3] Article 428 of the Civil Act

[1] Supreme Court Decision 92Da2332 delivered on May 26, 1992 (Gong1992, 201), Supreme Court Decision 92Da10890 delivered on November 24, 1992 (Gong1993Sang, 218), Supreme Court Decision 94Da37073 delivered on April 25, 1995 (Gong1995Sang, 1941) / [2] Supreme Court Decision 87Da2896 delivered on May 24, 198 (Gong198, 986), Supreme Court Decision 92Da4520 delivered on February 12, 193 (Gong193, 1976), Supreme Court Decision 9Da197315 delivered on April 7, 1995 (Gong1976)

Seoul 16 Medical Insurance Cooperatives

Defendant (Attorney Hwang Byung-il, Counsel for the defendant-appellant)

Seoul District Court Decision 94Na46267 delivered on March 30, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The facts established by the court below are as follows.

On February 13, 1986, the defendant acquired the non-party joint real estate industry corporation (hereinafter the non-party company) with the non-party 1 and four others, and decided to operate the non-party company as joint representative director with the above non-party 1 in the future. On February 26, 1986, the defendant jointly and severally guaranteed between the plaintiff and the non-party company under the status of representative director of the non-party company (However, the registration of the defendant's representative director was completed on March 14 of the same year) and the non-party company under the medical insurance law.

On December 15, 1989, the defendant decided to transfer all of the shares of the non-party company owned by the defendant, including the management right of the non-party company, to the non-party 2. On January 20, 199, the defendant was responsible for the debts borne by the non-party company prior to the transfer base date, but the amount incurred thereafter was agreed to handle according to the Commercial Act and custom. The defendant was not involved in the management of the non-party company after January 20 of the same year, and the non-party 2 resigned from the office as the representative director of the non-party company on March 23 of the same year, and was assigned as the non-party 2 as the representative director of the non-party company on April 18, 191. The non-party company was not a joint and several surety company with the non-party 2 and the non-party 3 was not a joint and several surety company with the non-party 9's trade name, and it was changed to the non-party 1 corporation on July 20, 199 of the same year.

2. Judgment on the grounds of appeal

As to the first and fifth points

Examining the relevant evidence in comparison with the records, the court below judged that the defendant's confession as to the authenticity of the evidence No. 1 was against the truth and was caused by mistake, and it is all acceptable that the defendant's confession as to the authenticity of the evidence No. 1 was recognized by the evidence of the time, and there is no error in the misapprehension of legal principles as to the interpretation of disposition documents such as the theory of lawsuit, or

The judgment of the party members pointing out the theory of lawsuit (Supreme Court Decision 94Da34425 delivered on February 17, 1995) is not applicable to this case where the defendant entered into a joint and several surety contract with the party members. All of the arguments are without merit.

On the second ground for appeal

In the position of director of a company as a joint guarantor for a debt arising from a continuous transaction with a third party, if a joint guarantor leaves the position of director after retiring from the position of director, the guarantee contract can be terminated for this reason. The expression of intent of termination is not necessarily required in writing. However, it is like theory (see, e.g., Supreme Court Decisions 92Da2332, May 26, 1992; 92Da10890, Nov. 24, 1992). The creditor recognizes the withdrawal of a joint guarantor, and therefore the guarantee contract is not terminated as a matter of course without the declaration of termination to the creditor of the joint guarantor.

The court below held that the contract of this case was terminated only by content-certified mail sent by the defendant to the plaintiff on June 21, 1993. In light of the records, it is reasonable to accept such judgment of the court below, and it is difficult to conclude that the contract of this case was terminated as a matter of course, or that there was an agreement between the plaintiff and the defendant to terminate the contract of this case on the ground that the plaintiff was aware of the fact that the plaintiff had resigned from the defendant's representative director, and used the changed trade name and the name of representative director in notifying the non-party company'

On the third ground for appeal

Where a director, etc. of a company jointly and severally guaranteed a debt incurred by a continuous transaction with a third party, he/she shall be held jointly and severally liable for the debt incurred by a continuous transaction with the director, etc. due to his/her position in order to take responsibility only for the debt incurred while in office for the transaction of the company. In addition, there are special circumstances, such as newly receiving a joint and several guarantee by the director, etc. who was in office at the time of the transaction whenever the other party to the transaction of the company makes a transaction, and in the absence of such circumstances, the limitation on the liability cannot be interpreted as limited to the joint and several guarantee (see, e.g., Supreme Court Decisions 92Da4520, Feb. 12, 1993; 94Da736, Apr. 7, 199

According to the reasoning of the judgment below, the court below held that the whole debt of this case occurred after the defendant resigned from the representative director of the non-party company, and that the name and the representative director of the non-party company were changed several times even after the defendant resigned from the non-party company, and that the plaintiff was aware of this fact, etc., the scope of guarantee liability based on the contract of this case cannot be viewed as a special circumstance that the defendant is limited to the debt incurred when the non-party company is in the office of the representative director of the non-party company. The judgment of the court below is correct in accordance with the opinion of the party member as mentioned above, and there is no error

The Supreme Court Decision 9Nu8224 delivered on July 24, 1990, Supreme Court Decision 93Da49208 delivered on June 28, 1994, etc. 93Da49208 delivered on June 28, 199) pointing out the theory of the party members is not applicable to this case. All of the arguments are without merit.

On the fourth ground

According to the records, the court below seems to have correct measures that the defendant did not recognize that it is reasonable to dispute the existence or scope of the obligation of this case, and there is no error in the misapprehension of legal principles as to Article 3 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, such as the theory of lawsuit

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)